Opinion
G057223
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. HIGINIO ALEJANDRO GONZALEZ-REYES, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF2103) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed and remanded with directions. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Higinio Alejandro Gonzalez-Reyes appeals from the judgment of conviction entered after a jury found him guilty of forcible rape, false imprisonment, and domestic battery with corporal injury. Defendant contends the trial court erred by failing to find Penal Code section 654 applicable to the false imprisonment and domestic battery with corporal injury offenses, and by instead imposing sentences for those offenses to run concurrently to the six-year prison term imposed for the forcible rape offense. He also argues the trial court violated his due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by imposing assessments and a fine without first determining defendant's ability to pay them.
All further statutory references are to the Penal Code unless otherwise specified.
At the sentencing hearing, the trial court stated that section 654 applied to both the false imprisonment and domestic battery with corporal injury offenses. The court's minutes and the abstract of judgment both inaccurately state the court imposed concurrent terms for those offenses. We affirm the judgment and remand with directions that the trial court correct the minutes and prepare a new abstract of judgment that accurately reflects the court's oral pronouncement of judgment. Even if the trial court erred by failing to determine defendant's ability to pay the imposed assessments and a fine, any such error was harmless because defendant will have ample time to pay them during his incarceration.
FACTS
In 2012, Y.B. and defendant began dating. In September 2015, Y.B. lived in an apartment with defendant and defendant's mother and sister. During that month, Y.B. and defendant "fought a lot" because defendant was jealous of a man with whom Y.B. worked. They fought almost every time Y.B. went to work or came home from work; defendant wanted her to stop working.
During the late afternoon of September 17, 2015, Y.B. and defendant argued about defendant not wanting her to go work. The argument became physical and Y.B. later called the police. Huntington Beach Police Officer Evelyn Alvarado was dispatched to the apartment that evening. Alvarado spoke with Y.B. who appeared upset and as though she had been crying; their conversation was audio recorded.
The following summarizes what Y.B. told Alvarado that night. Y.B. and defendant had been having relationship problems the prior few months because defendant was "overly possessive and jealous." They began arguing that day around 5:30 p.m. after defendant had returned from work. Y.B. was in the kitchen when they initially argued about some DVDs that Y.B. had thrown away. Defendant "left" for about 10 minutes. When defendant returned, he grabbed Y.B. by the hair and took her into the bedroom where defendant grabbed her by the shirt and shoved her around the room about five times, causing her shirt to tear. Y.B. tried to leave the bedroom but defendant stood in front of the doorway and prevented her from leaving. Y.B. asked him to let her out but defendant refused; when she tried to get to the door, he pushed her back and she fell on the bed. Defendant told her that if she did not stay still, he would hit her. Defendant placed both of his hands around Y.B.'s neck and started to strangle her for about two minutes; she could not breathe. He let go of her and Y.B. screamed for help.
Y.B. testified that she had previously lied about what had happened on September 17, 2015 because she was angry that defendant would not let her go to work.
Defendant then told Y.B. that he wanted to have sex with her; she told him she did not want to have sex with him. Defendant then grabbed her wrists and placed them down on the bed, forcibly removed her clothing, and raped her. She asked him to stop about three times. When he tried to penetrate her anus with his fingers, she pulled his finger back; he slapped her on the fingers and told her if she "did it again," he would hit her.
During his assault, defendant told Y.B. to call her boss and let him know she was not going to make it in to work. Defendant dialed the phone and the call went to voicemail. After defendant directed Y.B. to leave a voicemail and she refused, he "penetrated her with greater force," causing her pelvic area to hurt. After defendant realized Y.B.'s pelvic area was hurting, he stopped. At an unspecified time, defendant told Y.B. that he was capable of killing her if he ever found out she was seeing somebody else.
PROCEDURAL HISTORY
Defendant was charged in an information with one count each of forcible rape (§ 261, subd. (a)(2)) (count 1); sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) (count 2); false imprisonment by menace, violence, fraud and deceit (§§ 236, 237, subd. (a)) (count 3); and domestic battery with corporal injury (§ 273.5, subd. (a)) (count 4). In defendant's first trial, the jury was unable to reach a verdict and the court declared a mistrial. In defendant's second trial, the jury found him guilty of counts 1, 3, and 4.
The trial court sentenced defendant to a total prison term of six years by imposing the middle term of six years on count 1. The court found section 654 applicable to counts 3 and 4, thereby staying execution of sentence on those offenses. The court awarded defendant 68 days of combined presentence custody and conduct credit. The court also imposed a $40 court operations assessment for each count under section 1465.8, a $30 criminal conviction assessment for each count under Government Code section 70373, subdivision (a)(1), a $300 restitution fine under section 1202.4, subdivision (b), and a $300 parole revocation fine under section 1202.45 that the court stayed pending successful completion of parole. Defendant appealed.
DISCUSSION
I.
The Trial Court Found Section 654 Applied to Counts 3 and 4.
Defendant contends the trial court erred by imposing concurrent sentences on counts 3 and 4 and failing to stay execution of those sentences under section 654. Defendant contends that his commission of counts 1, 3, and 4 "constituted one indivisible transaction with one objective intent . . . of forcing [Y.B.] not to go to work."
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The purpose of section 654 is to "prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Defendant's argument is based on the trial court's minutes from the sentencing hearing that state the court imposed prison terms for counts 3 and 4 that were to be served concurrently with the six-year prison sentence imposed on count 1. The abstract of judgment is consistent with the minutes in reflecting defendant was sentenced to concurrent terms on counts 3 and 4.
At the sentencing hearing, however, the trial court stated it found section 654 applied to counts 3 and 4 and did not impose concurrent terms for those sentences. The court initially stated that the court found "the principal count should be count 1, but going to count [3] and count [4], I do want to hear from the parties. That appears to the court that both of those would merge under [section] 654." The prosecutor responded by stating that both the false imprisonment and the domestic battery with corporal injury offenses were each "distinct acts . . . that would be separate from the count 1." Defendant's trial counsel stated: "Your honor, I think it's a continuous act and it was done at the same time in the same place as . . . count 1, and I would say that it would merge, and if it doesn't merge, I would request that it be run concurrent with the base term of count 1."
The trial court initially referred to counts 3 and 4 as counts 2 and 3, but later corrected itself: "Oh I'm sorry. It was—I imposed the midterm on the false imprisonment, that should be count 3, and the DV violation, that's count 4."
The court thereafter imposed a six-year prison term on count 1 and then stated: "I do believe originally—I mean, at this point, that the punishment or the sentence on counts [3] and [4] should be merged under [section] 654. But in the event that the court's in error, anyone reviewing this, I would impose the middle term of two years on count 2, the middle term of three years on count 3, and I would run it concurrent to the middle term on count 1." (Italics added.) The transcript from the sentencing hearing establishes that the trial court found section 654 applicable to counts 3 and 4 and then noted that, in the event the reviewing court disagreed with section 654's applicability, the trial court would otherwise intend to impose concurrent middle terms on those counts.
"The record of the oral pronouncement of the court controls over the clerk's minute order." (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Zackery (2007) 147 Cal.App.4th 380, 385 ["Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls"].) In the respondent's brief, the Attorney General argues substantial evidence supported the trial court's imposition of concurrent sentences instead of staying execution of punishment under section 654. The Attorney General does not argue section 654 was inapplicable to counts 3 and 4 as a matter of law.
We therefore remand to the trial court to correct the minutes to conform with the court's oral pronouncement of judgment to stay execution of sentence on counts 3 and 4 under section 654.
II.
Even if the Imposition of the Assessments and Fine Was Error,
Any Such Error Was Harmless.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the trial court erred by ordering him to pay a restitution fine, the criminal conviction assessments, and the court operations assessments without conducting a hearing on his ability to pay that fine and those assessments.
On a vastly different set of facts, the Dueñas court held that due process of law requires that a trial court determine a defendant's "present ability to pay" before imposing court facilities and operations assessments. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Assuming for purposes of this opinion only that Dueñas was correctly decided, any error in failing to hold an ability to pay hearing is harmless where, as here, the defendant's sentence is long enough that he or she would be able to earn enough in prison wages while incarcerated to pay off the assessments. (See, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [six years, with 332 days of presentence credits].)
"[Defendant's] ability to pay includes '[his] ability to obtain prison wages and to earn money after his release from custody.' [Citations.] '[E]very able-bodied prisoner' must work while imprisoned. [Citation.] Prison wages range from $12 to $56 per month, depending on the job and skill level involved." (People v. Cervantes (2020) 46 Cal.App.5th 213, 229, citing Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).)
Defendant was sentenced to a six-year prison term and was awarded a total of 68 days of combined presentence custody and conduct credit. He will be unable to earn conduct credit above the rate of 15 percent under section 2933.1 given his conviction for forcible rape in violation of section 261, subdivision (a)(2). The total amount of his financial obligation is $510 ($300 restitution fine, plus $90 [$30 criminal conviction assessment per convicted count], plus $120 [$40 court operations assessment per convicted count]).
Defendant was 37 years old at the time he was sentenced and nothing in the record suggests he is incapable of performing work. Assuming defendant earns the lowest prison wage of $12 a month for the duration of his sentence, it will take him approximately 42.5 months (about three and one-half years) to pay off that amount. We therefore conclude that defendant's ability to pay the total amount imposed with prison wages "forecloses a meritorious inability to pay argument." (People v. Jones, supra, 36 Cal.App.5th at p. 1035; see People v. Johnson (2019) 35 Cal.App.5th 134, 140 [concluding that "because [defendant] has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt"].) Accordingly, we find any Dueñas error to be harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed. We remand with directions to the trial court to (1) correct the minutes to reflect that execution of sentence on counts 3 and 4 was stayed under Penal Code section 654; (2) prepare an amended abstract of judgment that reflects the stay of execution of sentence on counts 3 and 4 under section 654; and (3) forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.